just read a very interesting article titled "Furor
over DSM-V." Apparently, the Diagnostic and Statistical Manual (DSM),
published by the American Psychiatric Association as a diagnostic tool), is in
the process of being revised (for the fifth time, hence "V"). Details of
the proposed changes were recently released and, if implemented in their
current form, may significantly impact employers' obligation to accommodate
disabilities under the Americans with Disabilities Act.
ADA requires an employer to provide reasonable accommodation to an employee or
applicant whose impairment meets the statutory definition of "disability,"
unless doing so would cause "undue hardship" to the employer. When
determining whether a "mental impairment" qualifies as a "disability" under the
ADA, the Equal Employment Opportunity Commission looks to the DSM for
direction. Specifically, in enforcement
guidance on psychiatric disabilities under the ADA, published in 1997, the
EEOC refers to DSM-IV (the then-current version of DSM) as a useful resource
for identifying "mental impairments" under the ADA, which has been "recognized
as an important reference by courts and is widely used by American mental
health professionals for diagnostic and insurance reimbursement
purposes." Under the ADA, a psychiatric disorder described within DSM may
be a "disability" if not specifically exempted and if it significantly limits a
major life activity.
Proposed changes to the DSM
includes as disorders a number of potentially work-related conditions not
included in DSM-IV, such as: social communication disorder (low social
communication abilities resulting in functional limitations in occupational
performance); callous and unemotional specifier for conduct disorder (does not
show concern about poor/problematic performance at work); and mild
neurocognitive disorder (minor cognitive decline from a previous level of
performance). Other changes under consideration include the
classification of "apathy syndrome," "internet addiction disorder," and
"seasonal affective disorder" as psychiatric disorders.
An open letter signed by
nearly 6000 people challenges many of the proposed changes. Of particular
relevance to claims under the ADA is the letter's challenge to the task force's
proposal to lower diagnostic thresholds, which could increase the number of
people who qualify for a diagnosis and may lead to classifying "transitive,
even normative distress" (such as bereavement) as an impairment, leading to
over-diagnosis and the triggering of "false-positive epidemics."
implementation of the Americans with Disabilities Act Amendments Act of 2008,
the interpretation of "disability" became extraordinarily broad. If the
proposed changes to DSM are incorporated into DSM-V, the number of applicants
and employees who may be considered "disabled" under the ADA will expand even
Matters for additional insights from Martha J. Zackin of Mintz Levin's Boston office.
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